Toll Hikes and Legal Maneuvers

Story Highlights

The Oklahoma Turnpike Authority wants to be ready to increase tolls as soon as “practicable” if it doesn’t lose a lawsuit making its way through the State Supreme Court.

The Authority met Tuesday and approved 17% toll hikes to help pay for the Driving Forward turnpike project. However, a challenge making its way through the court is slated to have another hearing October 11. Meanwhile, an attorney for the group, Victims of Eminent Domain, has filed a “Friend of the Court” brief in the state’s high court supporting the constitutional challenge of “logrolling” – or putting more than one project together in a bond program. The group is made up mostly of residents of Eastern Oklahoma County strongly opposed to the proposed toll road.

If the court hurdles are cleared in favor of OTA, Pikepass holders and cash payers on the state’s toll road system will pay an initial 12% more, then another 2.5% in January 2018, and then another 2.5% in January 2019.

Roughly, if a motorist dumps three quarters into the hopper at the Luther gate on the Turner Turnpike headed to Oklahoma City, the trip will cost another dime. And your cash trip toward Missouri on the Turner and Will Rogers Turnpikes from Luther will cost $10 instead of $8. (Rates are discounted if you use a Pikepass). That’s for the initial increase.

All of that money will help pay the bond debt for the turnpike system once it spends $480 million more on the Driving Forward program to work on the dispute six projects, including the controversial Eastern Oklahoma County “connector” from I-40 to I-44. Current bond debt on existing turnpikes is well more than $1 billion.

The Authority also voted today to proceed with the sale of bonds, again, if it doesn’t lose at the Supreme Court. The resolution passed today “authorizes $480,000,000 aggregate principal amount of Oklahoma Turnpike Authority Oklahoma Turnpike System Revenue Bonds consisting of Second Senior Revenue Bonds, Series 2006B and C, in one ore more subseries, constituting fixed rate bonds to be issues at one time or from time to time for the purpose of funding capital costs of turnpike projects and improvements to the Oklahoma Turnpike System, including payment of certain revolving loans, refunding certain outstanding Second Senior Bonds, funding certain reserves with bond proceeds and paying costs of issuance,” the resolution said. The Oklahoma Bond Oversight Commission gave contingency approval to the sale at its August meeting, pending the outcome of litigation.

The OTA Operations Report for September 27, 2016, lists YTD toll revenues by turnpike, showing some of the biggest increases in the urban toll roads, Kilpatrick (OKC) and Creek (Tulsa).

As for the court challenge, Jerry Fent, a constitutional watchdog, has challenged a nearly 30 year old Oklahoma Statute related to turnpikes (1705) claiming it violates the part of the state constitution known as the single-subject rule (logrolling). In the Friend of the Court brief by Victims of Eminent Domain, attorney Eric Groves submitted a 12-page response supporting Fent’s challenge, and attempting to discredit the response of OTA’s attorneys.

Groves said OTA’s main objection was that the law in question is old, from 1989, and the Supreme Court has ruled on it before. Groves said however, not in this way, with this petitioner or for this project.

“The 1989 case and the case at bar are galaxies apart. First Fent was indisputably not a party to the 1989 action. Second, the subject matter is not the same: the 1989 case involved bond approval combined with a constitutional challenge on entirely different grounds from those asserted here, certainly not the single-subject rule. Third, the issues are not the same; the challenge here is based on the single-subject rule, not on improper delegation or legislative authority. OTA’s effort to consolidate Fent’s present challenge with a bond approval proceeding does not change this reality,” wrote Groves to the court.

Groves also addresses OTA’s claim that Fent’s challenge is mooted because of prior bond approval and construction of two roads listed in 1705.

Oklahoma’s “Supreme Court … recognizes the usual two exceptions to mootness … a case will not be found to be moot where the appeal presents a question of broad public interest. Second, mootness doctrine will not apply where the challenged event is capable of repetition yet evading review.”

Groves cites laws, decisions and Supreme Court opinions that support his argument that the bond funding for the Driving Forward projects are unconstitutional because of logrolling: “plain and simple.”

One could argue that the projects are “related” to on another, and they are, in a sense: they are all turnpikes. But they are unrelated to all the other turnpikes in 1705. None of the other roads are culled out as subject to a specific funding mechanism. One bond indenture. Take it or leave it.

Groves concludes his brief by urging the Court to sustain Fent’s challenge, thereby ensuring the integrity of the Oklahoma Constitution.

Jack Damrill, OTA, spokesman said the Authority’s action today was to be prepared.

“We went ahead to be … ready to go just in case we prevail in the hearings and also we are meeting with with rating agencies in October and they want to see what our plan is,” said Damrill.

He also said as far as the Driving Forward projects, “most are on hold or coming to a reasonable stop where possible. The two current projects on the Bailey and Muskogee continue.”